It is a great and somewhat daunting honour to address this illustrious audience on a topic so fundamental to our nation's future. I have never studied jurisprudence or any branch of law for that matter. So, I venture where angels fear to tread tonight in evaluating the state of our constitutional democracy as it moves from infancy to adolescence.

Our democratic republic is now 14 years old. At birth, it was a wonder of the world. Many called it a miracle. They felt that something supernatural had happened to transform a country characterised by oppression, racial conflict and violence into one of peaceful democracy. But there was no miracle. Instead, and much more to our credit, there was a victory of commonsense and decency. This did not emerge from nowhere. It represented a triumph of ideas, once suppressed and marginalised, whose time had eventually come.

Opponents, often vehement opponents, sat down together and through sensible deliberation and principled negotiation produced something that was greater than any of them, an excellent Constitution - the bedrock of our democracy, the guarantor of our liberties

14 years later, it troubles me profoundly to say that our young constitutional democracy is under threat. Are these the growing-pains of adolescence, from which we will emerge stronger and more resilient? Or will they prove terminal to the great project which bore such hope in its infancy?

The threat we face comes from within, and is directed towards the heart of our democracy, the Constitution itself. An ambitious and influential group within the ruling party is preparing for power by any means necessary and it is prepared to undermine the spirit and letter of our Constitution to do so. They believe their triumph to be more important than the welfare of South Africa. This is a time of peril, and we can only appreciate the danger if we look hard at what it is that sustains our society and what it is that preserves our liberties.

Modern civilisation is built upon foundations that we seldom see and that we take for granted. It is only when they fail that we become aware of them. We had a dramatic example in South Africa in January this year. Our gold mines shut down, our households were thrown into darkness and we found ourselves without lights, heaters, stoves and fridges when the electricity supply from Eskom failed. "Where does electricity come from?" "From that plug in the wall there." That is about as far as we think of it in our daily lives even though it sustains us in hundreds of ways. It is only when the electricity fails that we see how much we depend on it.

Electricity supply, which is the bedrock of every modern economy, did not come about by accident. It was the result of centuries of development by scientists and engineers. And it doesn't continue working by itself. It needs constant vigilance and effort. Power stations, transmission lines, transformers, breakers and cables - all of these must be maintained or replaced, and augmented as demand increases.

Electricity supply is a deep, barely visible foundation of the modern industrial economy. But there is a much deeper, even less visible foundation of civilisation itself. It is much older. It supports almost every transaction of our lives. It makes possible all of our freedoms. And if this foundation fails, it leads to catastrophe incomparably worse than any electricity failure. This foundation is the rule of the law, a concept that evolved into the rule of just law, and then into constitutionalism: the notion that governments are bound by a fundamental law that establishes a framework of rights that rulers are obliged to maintain and defend.

Constitutionalism proceeds from an assumption of human fallibility, of the corrupting influence of power, and therefore of the importance of limiting power. It recognises that rights are indivisible, and that a government should never be the arbiter of rights but accountable for upholding them. This is why the concept of separation of powers, and of the distinction between party and state, are so central to constitutionalism. The ends do not justify the means.

This evolution has taken human society centuries to achieve. In South Africa we witnessed this transition happening before our eyes in the space of a few short years during the mid-1990s.

The miracle moment of our transition was not represented by the long queues when we voted together to end apartheid. It was when the aeroplanes of our air force flew above the Union Buildings and dipped their wings to salute the newly inaugurated President of South Africa, Nelson Mandela. Those pilots, representing the armed force of the state, almost certainly from backgrounds quite different from those of the new ruling party, were not only paying homage to President Mandela but also to democracy and the highest ideals of our interim Constitution. They were acknowledging the legitimacy of changing governments through the ballot box, the separation of party and state, the limitations on their own power. Their allegiance to the constitution overrode their loyalty to any party. Think by contrast of the role of the security forces in Zimbabwe today.

Those of us who have been close to South Africa's transition have come to understand, first hand, why nothing made by humans in all of our development and all our history is more important than the process of making laws and then abiding by them. The greatest distinction between animal society and human society is the capacity for the development of law. This has made possible all the other achievements of human civilization: science, engineering, architecture, industry, commerce and art. The law ennobles us all and allows us to transcend our brutish natures.

We evolved from animals, and animals do obey a law, the law of the jungle. Kipling explained it vividly:

Now these are the laws of the jungle
And many and mighty are they
But the head and the hoof of the Law
And the haunch and the hump is - Obey!

Force and strength rule the jungle - not only the strength of tooth and claw but the strength of the dominating personality and the powerful will. The weak must submit to the strong, in their every whim and impulse. That is the law of the jungle.

The first human societies were probably similar, until eventually the dominant male became a chief or a king. Then he began to make laws that held over time. They were unjust laws, giving all power and privilege to him but they brought a measure of certainty and consistency. Then came the development of common law, which continuously advanced human society. Accompanying this was a decrease in the absolute rights of the ruler and an increase in the natural rights of the ruled.

Of fundamental importance was what Sir Henry Maine called the progression "from status to contract". This is highly relevant for South Africa now. In the ancient world individuals were bound by status to traditional groups, limiting their actions. In the modern one, individuals are autonomous beings free to make contracts and associations with whomever they please.

Constitutionalism and the rule of the law are infinitely better than any other guide for human progress. But of course they are not perfect. They have their deficiencies. I shall give two obvious ones.

Justice most certainly is not the same for the rich and the poor. A rich criminal or litigant stands a far greater chance of success in an identical situation than a poor one, simply because he can afford better lawyers. This is unjust. This is iniquitous. It leads to the rule of lawyers. We must strive in every way we can to remedy this: by better policing, so that police evidence is tighter and more accurate and less open to interpretation by clever defence lawyers; and by better national prosecutors; and by systems that ensure access to quality legal representation for all.

The rule of law is also slow and cumbersome. In the USA in the 1920s, everyone knew that Al Capone was a gangster and murderer but, because he killed witnesses, hired expensive lawyers and exploited police corruption, he was never convicted of anything except tax evasion. In South Africa now, in the Western Cape particularly, everybody knows who the gangsters are controlling the deadly drug trade, but they are not brought to trial for the same reasons. If you replaced Thabo Mbeki with Adolf Hitler as President of South Africa, and if you replaced the South African Police with the Nazi Gestapo, by Monday morning there would not be a drug lord left alive in South Africa. But the price would be awful. You would have removed gangsters from the street corners but put gangsters into government.

The value of the rule of the law can best be seen in the consequences of its failure, of which the 20th Century provides many terrible examples. Hitler's ascension is one. He was openly contemptuous of impartial law, and glorified strength and force. After a bloody act of thuggery in 1934, he declared that he was "The supreme justiciar of the German people". Like a cowboy in a B-grade Western, he said, "I am the law". And to him and that cowboy, the only reply is, "If you are the law, then there is no law". Hitler, like Lenin, Mussolini, Stalin, Mao and Pol Pot, believed in "the higher law of the party" that was superior to the rule of the law. This is the most dangerous of all political delusions but I am afraid that in our own democracy's adolescence, it has captured the fevered imagination of many.

The question I ask myself is this: did we in South Africa make the transition to constitutionalism too quickly to understand its significance? Will it therefore decline as quickly as it evolved? The answer depends on us.

The signs at present are not encouraging.

Next year we shall have an election followed by the inauguration of a new President. An important question is: who will that be? A far more important question, however, is: how will he come to power? Jacob Zuma is the president of the ANC and the dominant faction that supports him wants him to be the next President of South Africa.

Jacob Zuma, as all who have met him will agree, is a charming man. He is certainly more affable than his predecessor as head of the ANC. He has the common touch, he has charisma and a natural personal humility. However, his charm belies a fundamental disdain for the Constitution. In December 2006 he said, "The ANC is more important than even the Constitution of the country". In the same month he said, "Once you begin to feel you are above the ANC, you are in trouble". This is a horrible affirmation of "the higher law of the party", the most dangerous of all political delusions. He has repeated more than once that "the ANC will rule South Africa until Jesus comes again".

Speaking in Umtata last year, Zuma said the country shouldn't have opposition parties simply because there HAVE to be opposition parties, and that opposition parties have no right to exist if they cannot come up with better policies than the ruling party. Of course, according to Zuma, the ANC has the right to decide whose policies are better. "If the ANC has the best policies, what is the problem? If everyone supports the ANC, then there is no problem. That is except if you want a debate at a university's debating society, because no one has proposed better policies than us." There you have the clearest possible formulation of the higher law of the Party (which is always, in truth, merely a convenient figleaf for the higher law of the interests of the party leaders).

We also all know that Jacob Zuma faces a corruption trial and if he is found guilty and given a sentence of more than 12 months it will prevent his becoming the next president. His supporters are determined to remove this obstacle, by whatever means it takes, because for them the end justifies the means.

On June 16th, the President of the ANC Youth League, Julius Malema infamously said, "We are prepared to take up arms and kill for Zuma". On June 21st, Young Communist League national secretary, Buti Manamela said that if Zuma did not become President, "there will be hell to pay". Of the ultimatum to Malema by the SA Human Rights Commission - a constitutionally enshrined institution - Manamela said: "We don't want to hear what you have to say". And at a funeral for an ANC veteran on the same day, Cosatu Secretary General Zwelinzima Vavi said, "so yes, because [ANC president] Jacob Zuma is one of us, and he is one of our leaders, for him, we are prepared to lay our lives and to shoot and kill."

The ANC Secretary General, Gwede Mantashe, told an ANC Youth League conference that the investigations against Hlophe were "psychological preparation of society so that when the Constitutional Court judges pounce on our president we should be ready at that point in time". He also said, "Our revolution is in danger; we must declare to defend it to the end." Later he confirmed he was concerned about "counter-revolutionary forces", including the Constitutional Court", the UDM, the IFP and the DA.

These are menacing sounds. There can be no doubt at all that this is part of a strategy to re-align politics into the camp of "the revolution", which simply means everyone who supports Zuma for President, and everyone else, who will be called "counter-revolutionaries", reactionaries and enemies of transformation. This is a power grab masquerading as a progressive movement. This is a venal minority impersonating a righteous majority. Part of their strategy is to smear and diminish the Constitutional Court because it threatens to uphold the rule of the law in the Jacob Zuma trial and so is an impediment to his presidency.

In truth, the Zuma faction is subverting the institutions of the constitution for the benefits of the party, and applying the law selectively, just as Thabo Mbeki's faction did. The fight in the ANC is about which faction will control the institutions of state and society, in order to bend them to the party's interests, which (as I have said) are merely a fig leaf for the party leaders' interest.

The ANC is not unique in this. Almost every liberation movement has gone the same way after attaining power, to the extent that it has become trite to say that liberation movements seldom succeed at democratic governance. There has been no coherent explanation of this phenomenon, as far as I am aware. I believe the single most important reason is this: Liberation struggles are about attaining power. Constitutional democracy is about limiting power. Very few activists who have engaged in liberation struggles understand this distinction and they therefore cannot navigate the transition from struggle to democracy. They equate their own power with the revolution. They equate their own power with liberation. Anyone who seeks to limit their power is therefore counter-revolutionary. In fact, the opposite is true. As soon as most struggle heroes attain power, they tend to betray the values that motivated their liberation struggle in the first place, because they cannot come to terms with limiting their own power.

In an adolescent democracy, moreover, most voters help to sustain their leaders' delusions. It often takes decades for people to realise they have been hoodwinked by the leaders they trusted, and to whom they voted more and more power. By then it is usually too late. In a democracy, voters get the government they deserve, and voters must accept responsibility. Constitutional limits on power abuse are easy to lose but very difficult to reclaim.

Think of the pending Jacob Zuma trial in this context. The voters have given the ANC a two-thirds majority (indeed after floor-crossing this Party has a majority of 74,2% that puts it 0,8% away from being able to change the founding provisions of the constitution and the Bill of Rights unilaterally). In this context a constitution is scant protection and provides hardly any limitations on the power of the ruling party and its leaders.

Perhaps this is why so many in the ANC are confidently predicting that Jacob Zuma will never stand trial.

Their declared aim is to ensure that the case is dragged out long enough to ensure that Zuma becomes State President before any evidence against him is led in court.

Five so-called "political solutions" are being mooted to get him off the hook.

1. The first is "immunity from prosecution". The ANC wants to retain a 2/3 majority so that it can amend the Constitution to grant a sitting President immunity from prosecution, as is apparently the case in countries such as China, Chile and France.

2. Then there is the option of the New President using his powers to pardon himself. Section 84(2)(j) of the Constitution states that:

The President is responsible for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures.

Ultimately it is for the Constitutional Court to interpret this section's meaning. I have heard ANC members arguing that a presidential pardon would not be the same as being a judge in one's own case, because a pardon is not a judgement.

3. In the same vein, Zuma could use his presidential powers to deploy another cadre to head the NPA on the understanding that he would drop the charges against the President. Section 179(1)(a) of the Constitution provides for the National Director of Public Prosecutions to be appointed solely by the President. Should the head of the NPA be an ANC deployee appointed by Zuma, it is conceivable that he/she would overturn the decision to prosecute Zuma in line with section 179 (5) of the Constitution which gives the National Director of Public Prosecutions the power to review a decision to prosecute.

4. Another option mooted - strangely enough by Andrew Feinstein - is the possibility of a Truth and Reconciliation-style process to get to the full truth of the Arms Deal, and avoid selective prosecution.

5) The final option available is to deploy a sympathetic judge to the Zuma trial, or to influence other judges who are required to rule in the Zuma matter. This sounds far fetched but is precisely what Judge President Hlophe is alleged to have done.

Zuma supporters have in various ways sought to justify each of these moves on the basis that they are constitutional mechanisms. But each one of them fundamentally undermines the spirit of our constitutional democracy because they allow the ruler and the ruling party to subvert that most crucial aspect of the rule of law: that every body is equal before the law.

In arguing a different position, some maintain that it is "in the public interest" to avoid a Zuma trial given the concomitant risk to public order and stability. This is essentially Andrew Feinstein's argument for a TRC process.

Sipho Pityana, the former Foreign Affairs Director-General, also said in a lecture recently that persisting with the charges against Zuma would be "extravagant, reckless and foolhardy". He argues that the trial will distract Zuma from his duties as President and that the protest marches that are likely to occur outside the court would "undermine public order and stability and erode public confidence not only in the judiciary, but also in the law enforcement institutions."

Of course, here again, the public interest is conflated with the party's interests, which is a figleaf for the leader's interests. It is the law of the Party writ large -- the very opposite of constitutionalism.

The Zuma case reveals dangerous threats to our young democracy. But it is certainly not the only one, and indeed is part of a pattern of attacks against it. President Mbeki's dismissal of the National Director of Public Prosecutions, Vusi Pikoli, seems to be entirely because he acted against his ally, the National Police Commissioner Jackie Selebi, suspected of having unlawful connections with criminals. The most obvious reason for the shutting down of the Scorpions is that they were too successful in exposing corruption in high places. Furthermore there is a range of potentially unconstitutional legislation in the pipeline including the Expropriation Bill, the Protection of Information Act Amendment Bill, among others. Time does not permit me to go into more detail here.

I have painted a gloomy picture so far. I do believe there are serious threats to our constitutional rule. But I am not gloomy. In some sense I have never felt more excited about our prospects for dramatically improving our political landscape, and so improving our economy and the lives of all our people. In the very schisms and tumults of our politics, there is great hope. Let me explain.

Politics in South Africa is already, largely unseen, going through a fundamental re-alignment and this cuts right through the middle of the ANC. Politics is re-defining itself around the Constitution. The fundamental divide in the ANC is over whether you support the Constitution (even if you do not believe it is perfect) or whether you are prepared to push it aside if it obstructs your path to power and personal advantage. Professor Kader Asmal of the ANC has recently published a declaration in defence of Constitution and invited South Africans to sign it. I have done so. So has Archbishop Tutu, Ronnie Kasrils, Mosiuoa Lekota and Ben Turok.

There are men and women in the ANC who believe fundamentally in the supremacy of the Constitution and would concur, I have no doubt, with many of the points I have raised tonight. In 1996, when Jacob Zuma had asserted that the ANC was superior to the Constitution, the most telling rebuttal came from within the ANC, from Mosiuoa Lekota. He said:

"I think in the coming period we are going to have to answer to that because if that statement is going to be the guiding light for the ANC then I think we are completely on the wrong route. I cannot see that South Africa can be different from so many of the African countries which have got excellent documents on paper but when it comes to practice its completely something different. I think if in the end that is really what we have fought for or what we are expected to have fought for and so on, then freedom will never really dawn on our side."

This is fundamental. It is also no coincidence that it was Lekota who was howled down by the mob as he tried to exercise his function of chairing the ANC's Polokwane conference. It is not enough to have a good constitution. It must be enforced and protected. It needs constant vigilance to guard and maintain the constitution and make sure it always works as it was intended to work. And it is a work in progress.

There are still people in the ANC bluffing themselves that it is a united organisation and that the only division in South African politics is between the ANC, which represents everything good, and the opposition parties, which represent everything bad. They are totally wrong. The division is between those who support the Constitution and those who don't, and there are ANC people on both sides of that divide.

The National Party ruled South Africa for 46 years. It seemed monolithic and invincible, destined to continue its oppressive rule in perpetuity. In 1969, after 21 years, the Herstigte Nasionale Party, broke away, believing that B J Vorster was a treacherous liberal; After the Sharpeville uprising in 1976, the divisions became increasingly unbridgeable. They tried to pretend that they were a united party but in fact they were deeply divided between the "Verligtes" who wanted to reform apartheid and possibly even to end apartheid, and the "Verkramptes" who wanted to continue its cruel farce. "Broedertwis" divided their ranks. But the Verligtes seized control of the party's machine in the form of an unsuspected man of great courage, President F W de Klerk, who opened the way to democracy. In the ANC the die has been cast on the other side, whatever deluded praise-singers and analysts may say. But this will not prevent change. It means change will come about in a different way.

The ANC also seemed monolithic and invincible but after a much shorter time, after only 14 years, it is showing the same schism. It is also divided between its Verligtes, who support constitutional rule, and its Verkramptes, who want to subordinate the Constitution to the pursuit of power. Broedertwis has been replaced by Comrade-twis. And I know there are many Constitutionalists in the ANC who have far more in common with the DA than they do with the anti-Constitutionalists in their own party. Some National Party supporters used to believe they were born into their party and that it would be grave disloyalty to their people to vote for anyone else. This ended after about 30 years. There are some ANC voters who feel the same way. I believe this will end much sooner.

The old political formations bequeathed by apartheid are obsolete. We have to bring party formations in line with the new reality, the real political choices of our time. The biggest barrier to this process is those democrats in the ANC who believe their party is redeemable. It is not.

Among the turbulence and clamour in the ANC now, among the purging of provincial premiers and the thinly veiled menaces to the judiciary and the growling of unscrupulous men hungry for power and bounty, there is unprecedented opportunity to re-shape the politics of South Africa for the better. There is a chance to break up the present sterile party alignments and replace them with parties that represent issues and ideas rather than races or traditions. The most important issue, the most important idea is whether or not you support freedom, the rule of the law and the Constitution. Those who believe this are drawn from all races. They draw encouragement from our judges of the Constitutional Court who show no sign of backing down before threats and sneers and immoral suasion. They are buoyed by our free press, and our vigorous civil society, our excellent institutions of justice and democracy, and the mighty ranks of our people who support law and liberty.

Despite the testosterone dementia evident amongst those who hold power during this phase of constitutional adolescence, I believe we will survive this stage. We will see our constitution come of age. But it depends on us. We are the guardians of the constitution to which we gave birth. It was not an unwanted child; it was not forced upon us. We created it. From that moment on it was our duty to nurture and defend it. We will not fail.

Thank you.